What are rights? Notes for January 18

Main points

Rights, as people think of them today, are things that people have and can use. Lawyers have developed a series of distinctions that help to explain the different ways that one could have or use a right.

Specifically, we can distinguish among four elements that are often combined in the rights that we commonly speak of: liberties, claims, immunities, and powers.

If they’re combined …

Why bother distinguishing liberties, claims, immunities, and powers if they are generally combined in the rights that we are familiar with?

It’s worth doing that because rights can have different elements in different ways. In particular, some of the authors we will read assume that all rights must include some fairly significant powers. They will use this assumption to rule out rights that other people propose.

But the assumption isn’t obviously true. “Power” is just one possible element of a right. It isn’t simply part of the meaning of “right”. It’s hard to see that if you haven’t separated the different elements of rights from one another in the first place.

Moral and legal rights

Our conception of rights is heavily influenced by legal thinking. But moral rights and legal rights are different. For example, there can be a conflict between one’s moral rights and the law of a particular society.

Next time, we will consider a subtle, apparently structural, difference between moral and legal rights. It seems that there can be a moral right to do what is morally wrong: I can have a moral claim right to do what I have no moral liberty to do. By contrast, it is generally the case that there are no legal claim rights that one lacks the legal liberty to exercise.